Commentary: Could Right-to-Work be overturned?

As virtually everyone knows, a bill making Michigan a Right-to-Work state was rammed through the legislature in a single day during a so-called lame-duck session last December.

Not only were there were no committee hearings and no real debate: The Capitol Building in Lansing was closed to the public for what were said to be “safety reasons.”

The way in which this bill was passed has sparked a great deal of outrage, not all of it from groups automatically opposed to right to work legislation. The law, by the way, outlaws the so-called union shop, and means no worker can be forced to join or pay a fee to be represented by a union, in any public or private industry.

The American Civil Liberties Union has filed a lawsuit, claiming that the way in which right to work was passed violated the state’s Open Meetings Act. The suit hasn’t got a lot of attention.

But however it turns out could be significant for the future of democracy for reasons that have little to do with right to work itself. Last night I talked to Dan Korobkin, the ACLU attorney in charge of the suit. He told me the suit had nothing to do with the merits of right to work. In fact, the ACLU doesn’t question the legislature’s right to enact it. But they argue that the way in which it was done was improper, illegal and unconstitutional.

The aim of Michigan’s Open Meetings Act is simple: To protect our right to know what government is doing by opening to full public view the processes by which both elected and non-elected officials make decisions for the people.

After all, we elected them, and they work for us. Korobkin says that didn’t happen here. He told me, as other people have, that the public galleries were deliberately packed that day with assistants to Republican officeholders to squeeze out the general public. The ACLU also says closing the Capitol building was outrageous.

Indeed, nobody can ever remember this happening on any other piece of legislation. The lawsuit, filed in circuit court in Ingham County, where Lansing is located, is now in the behind-the-scenes pre-trial stages. It has gotten little attention in recent weeks. But the ACLU won a big victory early on. Michigan Attorney General Bill Schuette asked Judge William Collette to dismiss the suit outright, claiming it had no merit.

But the judge refused, saying there was enough evidence to move the case forward. And he called claims that the galleries were packed and the building illegally locked “suspicious.”

Even if the ACLU were to win this case, it will undoubtedly be appealed, and could end up before our Supreme Court, which has a five to two Republican majority.

But the discovery process is bound to tell us a whole lot about how this whole deal went down. And I think the issue is critically important. Suppose the legislature enacted the best law you can imagine. But that they did it by locking the doors, not holding a single committee hearing, and having the bill signed by a governor who dramatically reversed his position that same day. Is that the way you think our laws should be made?

I didn’t think so.

Jack Lessenberry is Michigan Radio’s Political Analyst. Views expressed in the essays by Jack Lessenberry are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.